L. A. Cnty. Dep't of Children & Family Servs. v. Maria V. (In re Darian R.)

75 Cal.App.5th 502

290 Cal.Rptr.3d 575

IN RE DARIAN R. et al, Persons Coming Under the Juvenile Court Law.

Los Angeles County Department of Children and Family Services, Plaintiff and Respondent,

v.Maria V., Defendant and Appellant.

B314783

Court of Appeal, Second District, Division 1, California.

Filed February 24, 2022

Elena S. Min, under appointment by the Court of Appeal, for Defendant and Appellant.

Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Sally Son, Deputy County Counsel, for Plaintiff and Respondent.

BENDIX, J.

The Indian Child Welfare Act of 1978 ( 25 U.S.C. § 1901 et seq. ; ICWA), " ‘is a federal law giving Indian tribes concurrent jurisdiction over state court child custody proceedings that involve Indian children living off of a reservation. [Citations.] Congress enacted ICWA to further the federal policy " ‘that, where possible, an Indian child should remain in the Indian community ....’ " [Citation.]’ [Citation.]" ( In re Benjamin M. (2021) 70 Cal.App.5th 735, 740, 285 Cal.Rptr.3d 682 ( Benjamin M. ).) Welfare and Institutions Code section 224.2 sets forth several requirements to effectuate the policies of ICWA.¹

Maria V. (mother) appeals from an order terminating her parental rights over her three children, who all have the same father. The sole basis of her appeal is that the Los Angeles County Department of Children and Family Services (DCFS) failed to interview her extended family members about their Indian ancestry. DCFS agrees this was error, but contends the error was not prejudicial. We agree.

As detailed below, the record does not support mother's argument that readily obtainable information would have shed meaningful light on whether the children are Indian children. There was a prior juvenile court finding that two of mother's children are not Indian children, the juvenile court asked mother, father, and paternal aunt about Indian ancestry, both parents eschewed Indian ancestry, and mother was living with extended family members whom she could have asked about potential Indian ancestry. We thus conclude under these circumstances, it was unlikely that any further inquiry of family members would have yielded information about Indian ancestry. Accordingly, DCFS's failure to ask extended family members about Indian ancestry was not prejudicial. We affirm the juvenile court's order terminating mother's parental rights.

BACKGROUND

Mother and father have three children: Darian, Hailey, and Bonnie. From September 2015 to October 2016, the family participated in family maintenance services. It is undisputed that in the context of that prior dependency case, the juvenile court found that ICWA did not apply.

In the current dependency proceeding, mother and father admitted being addicted to methamphetamine, and using methamphetamine every day. Father acknowledged that he was unable to care for the children.² Father said he stayed away from the children when he was "out on the street" because he was "using drugs."

Mother minimally participated in the current dependency proceedings. She initially visited the children but then stopped. Mother did not attend her scheduled drug tests and frequently could not be located. When social workers located mother in April 2020, she was living with maternal grandfather, and in July 2021, mother lived with maternal aunt. During the dependency proceedings, mother was arrested for assault with a deadly weapon.

1. Petition

In July 2019, DCFS filed a petition involving Darian (then 11), Hailey (then 8), and Bonnie (then 2). As subsequently sustained, DCFS alleged mother has a history of drug use and currently abused methamphetamine, rendering her incapable of caring for her children. DCFS further alleged mother had mental and emotional problems, including bipolar disorder, depression, anxiety, and self-mutilating behaviors, rendering her incapable of caring for the children. With respect to father, the petition alleged that he had an 18-year history of drug use and currently used methamphetamine, rendering him incapable of caring for the children. The petition alleged father had bipolar disorder and depression, rendering him incapable of caring for the children.

2. DCFS reports

In its detention report, DCFS stated: "The Indian Child Welfare Act does not apply. Mother ... denied that she or the children have American Indian ancestry." Mother never retracted her denial that neither she nor the children have Indian ancestry.

DCFS interviewed father for the detention report, but the report does not indicate the social workers asked father about whether he had Indian ancestry. The detention report indicated a social worker interviewed maternal aunt and had contact with maternal grandfather, but the detention report does not indicate whether the social worker asked mother's relatives about any potential Indian ancestry.³

The jurisdiction report echoed the detention report stating, "The Indian Child Welfare Act does not apply. Per the 7/16/19 Detention Report, mother ... denied Indian Ancestry" when questioned by a social worker.

On January 22, 2020, a social worker interviewed father and father denied any Indian ancestry.

On July 2, 2020, a social worker interviewed paternal aunt. Paternal aunt denied any Indian ancestry.

In a status review report dated October 6, 2020, DCFS indicated: "The Indian Child Welfare Act does not apply." Both mother and father denied having Indian ancestry.

On June 1, 2021, DCFS again reported that ICWA did not apply.

3. Parental notification of no Indian ancestry

On November 1, 2019, father filed parental notification of Indian status indicating, "I have no Indian ancestry as far as I know."

Mother filed her parental notification of Indian status on October 6, 2020. Like father, mother checked a box stating, "I have no Indian ancestry as far as I know."

4. Juvenile court findings and orders

At a hearing on September 3, 2019, the juvenile court concluded ICWA did not apply. The juvenile court relied in part on the undisputed fact that in a 2015 dependency case, the juvenile court found ICWA did not apply as to Darian and Hailey.

The juvenile court's November 1, 2019 minute order states: "The Court does not have a reason to know that this is an Indian Child, as defined under ICWA, and does not order notice to any tribe or the [Bureau of Indian Affairs]. Parents are to keep the Department, their Attorney and the Court aware of any new information relating to possible ICWA status."

On October 6, 2020, the juvenile court reiterated, "This does not appear to be a case governed by the Indian Child Welfare Act."

On August 6, 2021, the juvenile court terminated mother and father's parental rights. Neither was present at the hearing. Mother timely appealed from the order terminating her parental rights.

DISCUSSION

A. Applicable Law

"ICWA reflects a congressional determination to protect Indian children and to promote the stability and security of Indian tribes and families by establishing minimum federal standards that a state court, except in emergencies, must follow before removing an Indian child from his or her family." ( In re Austin J. (2020) 47 Cal.App.5th 870, 881, 261 Cal.Rptr.3d 297 ( Austin J. ).)

Federal law defines " ‘Indian child’ " as "any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe." ( 25 U.S.C. § 1903(4) ; see also In re A.B. (2008) 164 Cal.App.4th 832, 838, 79 Cal.Rptr.3d 580.) State law incorporates the same definition. (§ 224.1, subd. (a) & (b).) There is reason to believe a child is an Indian child if there is information that either child or the parent is a member or may be eligible for membership in an Indian tribe. ( § 224.2, subd. (e)(1).) There is reason to know a child is an Indian child if the child or the child's parent "possess an identification card indicating membership or citizenship in an Indian tribe." ( § 224.2, subd. (d)(6).) Notice to a tribe to determine if a child is an Indian child must include the names of the child's "direct lineal ancestors." ( 25 C.F.R. 23.111(d)(3).)

Under ICWA, the term "extended family member" is "defined by the law or custom of the Indian child's tribe or, in the absence of such law or custom, shall be a person who has reached the age of eighteen and who is the Indian child's grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin or stepparent." ( 25 U.S.C. 1903(2).)

At the outset of a dependency case, the child welfare agency and the juvenile court have a statutory initial duty to inquire into whether a child is, or may be an Indian child.⁴ "The child welfare department's initial duty of inquiry includes ‘asking the child, parents, legal guardian, Indian custodian, extended family members , others who have an interest in the child, and the party reporting child abuse or neglect, whether the child is, or may be, an Indian child and where the child, the parents, or Indian custodian is domiciled.’ ( § 224.2, subd. (b).)" ( Austin J. , supra , 47 Cal.App.5th at p. 883, 261 Cal.Rptr.3d 297, italics added.)

"The juvenile court must ask the participants in a dependency proceeding upon each party's first appearance ‘whether the participant knows or has reason to know that the child is an Indian child’ ( § 224.2, subd. (c) ), and ‘[o]rder the parent ... to complete Parental Notification of Indian Status ([Judicial Council] form ICWA-020).’ [Citation]." ( Austin J. , supra , 47 Cal.App.5th at p. 883, 261 Cal.Rptr.3d 297.) Pursuant to title 25 of the Code of Federal Regulations part 23.107, "(a) State courts must ask each participant in an emergency or voluntary or involuntary child-custody proceeding whether the participant knows or has reason to know that the child is an Indian child. The inquiry is made at the commencement of the proceeding and all responses...